Justin Chan Chambers Lawyers
THE DEPENDANT’S PASS: NOT JUST A LEGAL QUESTION
August 2023
Justin Chan - An experienced practitioner of all forms of dispute resolution, Justin advises on a broad spectrum of civil, matrimonial, and corporate matters.
Oftentimes, we hear of expat spouses sacrificing everything that they know and call home to move to Singapore to be with their husband and children. They come here as “trailing spouses” on a Dependent’s Pass or a Visit Pass and are tied inexplicably to their spouse in more ways than one. This is all fine and well during a happy marriage but it presents new difficulties during a divorce.
While others may only have to worry about “typical” divorce matters, expat spouses have the added stress and fear over their immigration status which affects their basic ability to continue staying in Singapore with their children. It is not uncommon to hear of spouses lording over trailing spouses the threat of cancelling their Dependent’s Pass, even before divorce proceedings take place.
Whether you have been on the receiving end of such a threat from your spouse or if you are simply contemplating how best to plan for your future, it would be useful to equip yourself with some basic knowledge on the matter.
IMPLICATIONS
The cancellation of a Dependent’s Pass not only creates a cloud of uncertainty as to a trailing spouse’s immediate and long-term arrangements, but also starts the countdown timer of 90 days till the trailing spouse must leave Singapore. This is provided for under a short-term visit pass (STVP) that will be issued to her after the cancellation of her Dependent’s Pass.
With an imminent deadline to leave Singapore, the trailing spouse may be put under immense stress as she attempts to settle critical aspects of her life while still physically in the country. This could include her immediate living arrangements due to the breakdown of the marriage, caretaking of the children and any divorce proceedings that will almost definitely take longer than 90 days. Other concerns noted by the court include the inconvenience and expenses a trailing spouse would have to bear if the STVP expires and she is made to travel in and out of Singapore to attend proceedings, creating an “uneven playing field” for divorcing parties.
Under a STVP, the trailing spouse is also not permitted to work in Singapore, potentially exacerbating financial woes. If the STVP expires and the trailing spouse is made to leave Singapore, the courts have recognised that this in effect leaves any children of the marriage in the care and control of the other spouse as well.
THE OPTIONS
If a Dependent’s Pass is still in effect but there are concerns that it may be cancelled by the other spouse, a trailing spouse can consider applying for an interim injunction to prevent her spouse from cancelling her DP while divorce proceedings are ongoing.
However, if your Dependent’s Pass has already been cancelled, the case of TYC v TYD [2017] SGFC 23 clarifies that an option is to seek an interim injunction requiring for your spouse to reinstate your Dependent’s Pass or apply for a new Dependent’s Pass.
The case of TYC v TYD [2017] SGFC 23 establishes the following:
1. The Family Court has affirmed that it has the power to grant this order, subject to the applicant being able to establish the need for it.
2. There are 2 grounds that empower the court to do so:
a. Firstly, the Court has the inherent power (Rule 958 of the Family Justice Rules) to make the appropriate orders to enable a fair trial to proceed, and to do justice between the parties.
i. In the context of a trailing spouse in the midst of divorce, whose DP was cancelled, the court recognised that the trailing spouse would incur hardship and expenses in having to travel back and forth for proceedings and would “effectively cripple the other’s ability to have the dispute litigated”.
ii. Importantly, the court clarified that if the applicant is relying on this, there need not be a child involved. However, it must be established that it is necessary in the circumstances. This would be particularly relevant for expat spouses with no children to the marriage.
iii. However, it is not in the court’s power to grant a substantive remedy, for example, a long-term visit pass (VLI v VLJ [2021] SGFC 51).
b. Secondly, the Court may grant the order per s 124 of the Women’s Charter that allows orders to be made if it is in the best interests of the child concerned.
i. As with any matter involving a child, the welfare of a child will be the court’s paramount consideration. TYC v TYD recognised that cancelling a trailing spouse’s DP would adversely affect the welfare of the child, especially if the trailing spouse has been the child’s primary care giver.
3. As a quick summary of the reasons why the order was granted in this case:
a. The court was satisfied that if the trailing spouse was made to leave, she would not be able to contest the divorce on a fair and even basis. This is especially so as she had limited financial means on her own and was the main caregiver of the child.
b. In addition, the court also held that it would not be in the child’s best interests for the trailing wife to be suddenly removed from the child’s life as this would represent a significant change to the child’s routine and the child would essentially lose a parental figure at a key stage in his development.
CONCLUSION
Depending on the circumstances, a trailing spouse may also wish to consider converting her DP to other passes such as an employment pass if she is able to find work within the 90 day STVP period, or a 2 year LTVP which may be granted to mothers of children who are Student’s Pass holders, Singapore citizens or Permanent Residents, and currently studying in Singapore. This will enable trailing spouses to also find employment and gain some financial independence under an employment pass and after the first year of the LTVP.
As recognised by the Singapore Family Court in TYC v TYD, with an increasing number of divorces filed in Singapore in relation to foreign couples, such cases are bound to become commonplace.
Thinking outside the box, parties can agree that any action to cancel the other parties Dependant’s Pass will not be undertaken. However, the enforceability of this has not been tested before the Courts.
If you are looking to seek advice from a Divorce Lawyer, then please contact Justin Chan Chambers, an expert in giving the right advice to Expatriates in Singapore.
Justin Chan Chambers
Address: 84 Circular Road, #03-01, Singapore 049436
Telephone: +65 9748 0907
Email: justin.chan@justinchanchambers.com
Website: www.justinchan.lawyer